SB 145 is an attack on public's right to know

Tuesday

Mar 5, 2013 at 3:15 AMMar 5, 2013 at 8:41 AM

It's too often hard enough holding boards of selectmen, city councils, school boards and the like to the letter and intent of New Hampshire's Right-to-Know Law which begins with the following statement:

“Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.”

It is a principle that time and time again the courts have been asked to uphold — and thankfully very often do. But now comes a request from the New Hampshire Supreme Court that flies in the face of that which RSA 91:a holds holy.

Senate Bill 145, which has been recommended for passage by the Judiciary Committee, would allow probate courts in New Hampshire to bury legal postings deep within the myriad layers of the Internet, with little or no assured concern the information will find its intended audience.

As the law now stands, probate court notices, as with the disposition of an estate, must be posted in a newspaper with relevance to the matter at hand — i.e. somewhere in the vicinity the persons live and where someone may have a pecuniary interest. The change proposed would allow that information to be posted on the Internet instead with no admonition or assurance the probate posting reaches its critical audience.

As amended on the Senate's calendar for action this week, SB 145 allows the court clerk to post such notices “on the New Hampshire judicial branch website or by other electronic media for no less than 2 weeks beginning no later than 2 weeks before the day or thing of which notice is given, unless otherwise ordered by the judge.”

Note there is no provision to let those who might have an interest in what is posted other than to magically check the judicial website or some undefined web location. Further, probate notices will be posted by the clerk “unless otherwise ordered by the judge.”

The rationale for SB 145 is time and money. According to the accompanying financial analysis, the measure might save an average of about $14,000 depending on how much the courts take advantage of website postings that could go hither and yon. But in looking at those numbers we find them speculative at best — based on one hour per court per week “because employees will spend less time addressing publication issues.”

Were New Hampshire a large state like New York, with hundreds of local newspapers — daily and weekly — we might for a moment accept the savings argument. But don't for a minute think picking the right newspaper in the Granite State takes any time worth counting on the work clock.

In addition, we would caution the Senate when its members look at this week's calendar. The posting there is misleading and leaves out some critical wording in the amended bill. It reads: “This legislation removes the current statutory language that requires publication of notices in local news.”

What is left out of this is a critical passage from the amended bill: “ ... RSA 490-F shall cause such notice to be made available to the public on the New Hampshire judicial branch website or by other electronic media.”

The Senate needs to take special note of the words we have placed in italic.

Simply put, SB 145 will save little or no money while allowing courts by design or simply for efficiency to bury probate notices where the sunshine of right to know cannot and will not reach for the average citizen.

While we greatly respect the role of our courts in promoting the public's right to know — and believe there is no ill-will intended by SB 145 — it is a bill which will in one way shape or form sacrifice public access under the guise of imaginary cost savings. A very bad trade, indeed.

Editor's note: The text of the SB 145 as amended appears at www.fosters.com/opinion.

This legislation removes the current statutory language that requires publication of notices in local newspapers and allows the courts to use their web site for publication. This change will enable estates to save on publication costs and enables court personnel to save time by not having to prove that the publications met statutory requirements.

Amend RSA 550:10 as inserted by section 1 of the bill by replacing it with the following:

550:10 Publication of Notice in Newspaper or Electronic Media.

I. Notwithstanding any other provision of law, whenever notice is required to be published by the probate court, the clerk of the applicable circuit court established in RSA 490-F shall cause such notice to be made available to the public on the New Hampshire judicial branch website or by other electronic media for no less than 2 weeks beginning no later than 2 weeks before the day or thing of which notice is given, unless otherwise ordered by the judge.

II. The clerk may cause such notice to be published in a newspaper which circulates in the town or city in which the person whose estate is involved last resided, or in the county whose court has jurisdiction, or otherwise as ordered by the judge. If published in a newspaper, the first such publication shall be at least 2 weeks before the day or thing of which notice is given and the second publication shall be at least 7 days before the day or thing of which notice is given, unless otherwise ordered by the judge.

III. Notice shall be published in English, and may be published in a language other than English, if ordered by the judge.

IV. The clerk may publish in one notice the necessary information pertaining to more than one estate, provided, however, that each separate subject matter such as the appointment of a fiduciary, a hearing on an account, a hearing on a license to sell real estate, or any other designated subject matter shall have a specific designation within each such notice.

V. Before such publication, the fiduciary of the estate concerned shall advance and pay to the clerk the cost of such publication as determined by the clerk, and a fee to the clerk as established by the supreme court under RSA 490:27. The fiduciary shall be allowed said sums so paid to the clerk in the account.

SB 145-FN — AS INTRODUCED

2013 SESSION

13-0951

01/09

SENATE BILL 145-FN

AN ACT allowing publication by electronic means by the probate division.

AN ACT allowing publication by electronic means by the probate division.

FISCAL IMPACT:

The judicial branch states this bill, as introduced, may decrease state expenditures by $6,910 in FY 2014, $14,206 in FY 2015, $14,617 in FY 2016, and $15,059 in FY 2017. There will be no impact on state, county, and local revenue, or county and local expenditures.

METHODOLOGY:

The judicial branch states this bill would repeal and reenact RSA 550:10 to allow for electronic publication of notices required to be published by the probate division of the circuit court. The Branch estimates that, because employees will spend less time addressing publication issues, the bill will save an average of one hour per week per court. Over ten circuits, this amounts to 520 hours per year of staff time saved. The Branch states that, while it currently has no plans to reduce full or part-time staff as a result of this bill, it is possible the bill may result in a reduction of part-time hours in the future. Accordingly, the Branch states the bill may result in the following cost savings should part-time hours be reduced. For the purpose of estimating savings, the branch uses the hourly wage of a court assistant III. The first fiscal year reflects a savings of 260 hours because the bill states it will take effect January 1, 2014. Subsequent fiscal years reflect a savings of 520 hours.

Fiscal Year

Hourly Wage

Projected Cost Savings

2014

$26.58

$6,910.80

2015

$27.32

$14,206.40

2016

$28.11

$14,617.20

2017

$28.96

$15,059.20

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.